Before the 2017 legislative session is a bill, SB2135, which would initiate a study of the initiated measure and referendum processes. You can read the full bill below. It’s sponsored by Senator David Hogue, a Republican from Minot. Here’s the mandate it would give to the study commission:
Per the bill, the commission would be made up of two members of the state House, two members of the state Senate, someone appointed by the Governor, and one person each appointed by the Chamber of Commerce, the Newspaper Association, the Farmer’s Union, and the Farm Bureau.
I like that the Legislature is taking this on. Because initiated measures are a really terrible way to make public policy.
America is a country which, historically, does not embrace direct democracy. Our presidents have never been elected by the popular vote, as Donald Trump’s electoral college victory over Hillary Clinton attests, and originally just one chamber of Congress, the House of Representatives, was elected popularly. Senators were appointed by the state governments (and I think our nation would be better served if that were still true).
In legislating no one branch of government can impose its will. The legislative branch, both nationally and here in North Dakota, must build consensus in two chambers to pass legislation, and even then those bills are subject to the veto of the executive branch before they can become law. The courts wield another veto still in the form of judicial review.
These checks and balances ensure that the awesome power of government is distributed and diluted. They mandate a process through which proposed policy is scrutinized and amended and, hopefully, improved in its final form.
But the initiated measure process has none of those checks and balances. Here in North Dakota any deep-pocketed interest can buy their way onto the ballot, and into the hearts of mercurial voters, and make policy at the ballot box. Sure the Legislature can overturn an initiated measure with a 2/3’s vote in each chamber, but that’s not nearly enough of a check.
Something as foundational to the workings as our society as making law is deserves a more rigorous process than collecting some signatures and putting an issue on the ballot.
In a perfect world this commission would get rid of the initiated measure process entirely (the referendum process, by which voters can refer bills passed by the Legislature to the ballot, should remain), but that’s probably a pipe dream. It seems unlikely that this sort of a commission would ever make such a recommendation, and unfortunately the initiated measure process is embedded in our state constitution. Meaning a vote of the people would be required to remove from the people their power to legislate at the ballot box.
Still, perhaps they can set about making the initiated measure process much, much more difficult. So difficult, perhaps, we might go entire election cycles without seeing any at all.
North Dakota would be better off if that were the case.
Here’s the full bill: